AP CEO addresses phone records seizure and safeguards

Gary Pruitt
President and CEO, The Associated Press
Address to the National Press ClubJune 19, 2013

Good afternoon.

Before coming over here to talk to you today, I thought I should get a sense of how the seizure of AP’s phone records by the DOJ is affecting our reporters. It’s been six weeks, after all, and of course we now know that our phone records aren’t the only ones being collected by the government.

What I heard from our journalists should alarm everyone in this room.

The actions of the DOJ against AP are already having an impact beyond the specifics of this case. Some longtime trusted sources have become nervous and anxious about talking with us -- even on stories unrelated to national security. In some cases, government employees we once checked in with regularly will no longer speak to us by phone. Others are reluctant to meet in person.

In one instance, our journalists could not get a law enforcement official to confirm a detail that had been reported elsewhere.

Imagine: officials were so fearful of talking to AP they wouldn’t even confirm a fact that had already been reported by numerous other media.

And I can tell you that this chilling effect on newsgathering is not just limited to AP. Journalists from other news organizations have personally told me that it has intimidated both official and nonofficial sources from speaking to them as well.

Now, the government may love this. But beware a government that loves too much secrecy.

Today, I want to provide you the latest news on the seizure of AP phone records by the U.S. Department of Justice, what AP is doing about it and the implications for all of us.

Let me recap how this all started. On May 7 last year, AP published a story on a foiled plot by an al-Qaida affiliate in Yemen. Al-Qaida was planning to use a new, sophisticated bomb to destroy an airliner headed for the United States. Our story revealed that the CIA had thwarted the attack, which was intended to coincide with the anniversary of the killing of Osama bin Laden.

Now this was a real scoop -- broken, incidentally, by two longtime AP national security journalists who shared last year’s Pulitzer Prize for investigative reporting.

It was not, however, a surprise to the U.S. government: As the story itself pointed out, AP held the report for five days at government request, because the sensitive operation was still underway. Only after the administration assured us that their security concerns had been allayed did we release the story.

The story was important on its own merits: Don’t Americans have a right and need to know that such an attack was being plotted and that their government was able to prevent it?

But it also brought into question a statement by White House spokesman Jay Carney.

Just two weeks earlier Carney had said, “We have no credible information that terrorist organizations, including al-Qaida, are plotting attacks in the U.S. to coincide with the anniversary of bin Laden's death."

And here was AP finding that, in fact, the CIA had been in the middle of foiling exactly such a plot. It turns out that the person who was to carry the bomb was actually a double agent working with the CIA, the Saudis and the British.

Some have argued that AP got the context wrong, that this was never an al-Qaida plot but a CIA scheme from the outset. That interpretation strains credibility. The attempt was an al-Qaida operation: al-Qaida constructed the bomb, and its agents were working to activate the plan.

The story received wide attention and, soon after, the U.S. Department of Justice announced that it was launching a leak investigation and appointed a U.S. attorney to head it up.

Now, fast forward one year.

Last month, on Friday, May 10, we received a letter from the Department of Justice informing us it had secretly seized records for 21 AP phone lines over most of a two-month period around the time that our story was released.

This unprecedented intrusion into AP’s newsgathering records by government officials was so broad, so overreaching and so secretive that it violated the protective zone that the First Amendment provides journalists in the United States.

We do not dispute that the government has the right to pursue those who leak classified information. This administration has prosecuted leakers like no other in this country’s history.

But the Justice Department has rules about subpoenas that target the press. These rules date back to the Watergate era -- and require that any demands “be as narrowly drawn as possible.” They also require news organizations be notified of a subpoena in advance, giving them time to appeal in the courts -- unless doing so would substantially impair the integrity of the investigation.

In the sweep of AP phone records, the DOJ leadership violated its own rules.

First, the subpoena was not focused as narrowly as possible: It was overbroad. The telephone records seized included not just the work and personal numbers of individual AP journalists, but general AP numbers in New York, Washington and Hartford, Conn., and AP’s main phone number in the U.S. House of Representatives press gallery. It included incoming and outgoing calls.

These were not just the phone lines of our investigative team. They are the general office numbers where as many as 100 reporters and editors work. Thousands of phone calls were swept up by our count.

Among the AP phone records taken by the DOJ was a switchboard number at the former location of our Washington bureau that we vacated more than six years ago. It also included a line that belonged to a reporter when he worked in Hartford, nearly seven years before.

This was hardly a surgical strike on a few carefully chosen targets; it was an overbroad and sloppy fishing expedition into a wide spectrum of AP news journalists -- most of whom had little or nothing to do with the issues in question.

The sweep of AP records may seem minor in light of news that the National Security Agency has collected the entire country’s phone records. But the DOJ was not collecting AP records to load into a database. It has a dedicated team of prosecutors poring over them to locate the source of AP’s reporting. And in doing so, accessing newsgathering information that is protected by the First Amendment against precisely this type of intrusion.

The second way the DOJ violated its own rules was in executing this subpoena without notice to AP, which meant AP could not seek judicial review of the subpoena. The DOJ claims the exception applied here -- and that notifying AP would substantially impair its investigation.

But how could that be?

To begin with, there is no way AP could tamper with the records, which are in the possession of third-party phone carriers.

DOJ also claimed that notifying AP would tip off the leaker. But the leaker certainly already knew of the investigation: FBI director Robert Mueller publicly announced it nine days after our story ran.

Furthermore, that kind of reasoning -- about tipping off leakers -- would by extension seem to apply to any case. The press would therefore never be given notice and the courts would never be involved. The exception would effectively swallow the rule.

Had the DOJ come to us in advance, we could have helped them narrow the scope of the subpoena. If AP and the DOJ did not agree, then a court could decide which was right. There was never that opportunity. Instead, the DOJ acted as judge, jury and executioner -- in secret.

The DOJ may well have been acting in good faith. But, if so, I suspect they got so single-mindedly focused on the leak investigation that they overlooked the First Amendment implications of their actions.

The DOJ has our records, so we can’t un-ring that bell. But I am pleased to let you know that the Justice Department has given us assurances that our phone records have been and will continue to be walled off, protected and used for no other purpose other than the leak investigation.

We appreciate these assurances. But that does not excuse what they did. We need to make sure it doesn’t happen again.

President Obama has asked Attorney General Eric Holder for recommendations by July 12 on the Justice Department’s regulations in this area. To that end, Justice has been consulting with a number of news organizations, public interest groups and First Amendment lawyers. Meanwhile, in Congress, there has been renewed support for a federal shield law to protect reporters’ sources. This would extend to the federal realm laws that already exist in more than 30 states. The White House has expressed support for such legislation.

The following five measures are imperative to give meaning to the powers spelled out in the First Amendment.

First: We want the Department of Justice to recognize the right of the press to advance notice and a chance to be heard before its records are taken by the government. This would have given AP the chance to point out the many failings of the subpoena. We believe notice was required under existing regulations; if the DOJ sees it differently, then the regulations must be strengthened to remove any doubt.

Second: We want judicial oversight. We need to ensure that proper checks and balances are maintained. In the AP phone records case, the Justice Department determined, on its own, that advance notice could be skipped, with no checks from any other branch of government. Denying constitutional rights by executive fiat is not how this government should work.

Third: We want the DOJ guidelines updated to bring them into the 21st century. The guidelines were created before the Internet era. They didn’t foresee emails or text messages. The guidelines need to ensure that the protections afforded journalists from the forced disclosure of information encompass all forms of communication.

Fourth: We want a federal shield law enacted with teeth in it that will protect reporters from such unilateral and secret government action.

Fifth: We want the Department to institutionalize formally what Attorney General Holder has said publicly: that the Justice Department will not prosecute any reporter for doing his or her job. The Department should not criminalize -- or threaten to criminalize -- journalists for doing their jobs, such as by calling them co-conspirators under the Espionage Act, as they did Fox reporter James Rosen. This needs to be part of an established directive, not only limited to the current administration.

AP has no political dog in this fight. It is not about Democrats or Republicans. Our issue is freedom of the press and the rights instilled in the First Amendment that were created to hold government accountable. This administration, which came to power on a platform of transparency, has been invoking ever more reasons to keep information confidential from the press and the public.

In the wake of the AP phone records case, the Obama administration has repeatedly said that it has nothing against journalists. Last month, the president stated that “journalists should not be at legal risk for doing their jobs.”

We appreciate that we will not be prosecuted for committing journalism. But isn’t that already in the First Amendment?

If reporters’ phone calls are now open territory for the government to monitor, then news sources will be intimidated from talking to reporters. Nonofficial news sources are critical to a free press and to holding government accountable. Otherwise, the public will know only what the government wants it to know. This is hardly what the framers had in mind when they wrote the First Amendment.

This month’s headlines show just how much power and information the government holds -- and why a robust free press is more important than ever.

The issue resonates far beyond America’s shores as well. The freedom of the press enshrined in the U.S. Constitution has been a model and an aspiration for nations and people around the world.

The DOJ’s actions could not have been more tailor-made to comfort authoritarian regimes that want to suppress their own news media. “The United States does it too,” they can say.

It should not be this way. A free and independent press is fundamental to a functioning democracy--it differentiates democracy from dictatorship; separates a free society from tyranny.

The First Amendment is our collective covenant that freedom will flourish on these shores. We should all be concerned at the apparent failure by DOJ to recognize how its actions threaten the very foundations of that freedom.